Heard Sri Indra Raj Singh, learned counsel for the petitioner and Sri Nripendra Mishra, learned counsel for respondent no.2.
The submission of the learned counsel for the petitioner is of two fold namely- (i) the report of the inquiry officer making recommendation for punishment is in breach of specific bar of not recommending punishment in inquiry report under Rule 8 of U.P. Government Servant (Discipline and Appeal ) Rule 1999 and as such the entire disciplinary proceeding stands vitiated and (ii) the order of the appellate authority is without any reason and has been passed without considering the grounds mentioned in the appeal and the arguments raised. This being so, the appellate authority has passed the order without following the mandate of Rule 12 of the aforesaid rules which is liable to be set aside.
Elaborating his submission he submits that if the statute provides for a thing to be done in particular manner it can be done in that manner alone. He submits that due to non observance of the mandatory provision of Rule 8, the impugned order is liable to be set aside. He relied upon the following judgments.
(i) AIR 1975 SC 915, Ramchandra Keshav Adke (Dead) by Lrs.
v. Govind Joti Chavare & others
(ii) (2003) 2 UPLBEC 1340 Ram Kishun v. State Election Commission and others
(iii) (2012) 1 UPLBEC 166 Dr. Subhash Chandra Gupta v. State of U.P.
(iv) (2013) 2 UPLBEC 1704 Harendra Pandy v. State of U.P. & others Sri Nripendra Mishra, learned counsel for respondent no.2 submits that although there is a recommendation in the nature of proposal for punishment by the inquiry officer in its inquiry report submitted to the disciplinary authority, yet the disciplinary authority has considered the 2 entire evidences on record and passed the order of punishment in accordance with law. He submits that in view of these facts it cannot be said that the entire proceedings gets vitiated merely for the reason that the inquiry officer made recommendation for punishment in breach of Rule 8 of the aforesaid rules. He submits that even if recommendation has been made by the inquiry officer in the inquiry report, the disciplinary proceedings shall not get vitiated under any of the provisions of the rules. Replying the second arguments of the learned counsel for the petitioner, he submits that the appellate authority has noted the facts in detail and thereafter, shown agreement with the findings recorded by the disciplinary authority and, therefore, it cannot be said that the impugned order passed by the appellate authority is without reasons and has been passed in violation of Rule 12 of the Rules.
Briefly stated the facts of the case are that the petitioner, Kali Ram Tyagi ( now dead ) was Assistant Store Keeper (electrical), Sub Division Hapur. On certain charges an inquiry was conducted against him and the inquiry report dated 7.8.2007 was submitted by the inquiry officer. The disciplinary authority considered the matter and passed the order dated 16.10.2007 awarding punishment of dismissal from service and recovery of Rs.83,895/- received by the petitioner towards medical reimbursement.
Aggrieved with the order of punishment dated 16.10.2007, the petitioner preferred an appeal before the appellate authority on 26.11.2007 followed by additional grounds of appeal dated 7.2.2008. By the impugned order dated 20.2.2008, the appellate authority rejected the appeal of the petitioner. Against the order dated 20.2.2008 and the order dated 16.10.2007 this writ petition was filed by the petitioner.
During the pendency of the writ petition, the petitioner died and the name of her wife Smt. Rekha was substituted under the orders of this Court dated 17.1.2014.
I have carefully considered the submissions made by the learned counsel for the parties.
I find substance in the second point argued by the learned counsel for the petitioner.
A perusal of the order of the appellate authority dated 20.2.2008, which 3 runs in 17 pages it is evident that in 14 pages the appellate authority merely extracted the inquiry report and referred the issuance of the show cause notice. In one page he noted the g rounds of appeal in brief. Thereafter, he came to the abrupt conclusion as under :
^^Jh dkyhjke R;kxh] lgk;d Hk.Mkjh dks fn;s x;s vkjksi i=] ml ij muds }kjk fn;kx;k fyf[kr mRRkj] ekSf[kd dFku] tkap lfefr }kjk lEikfnr vuq'kklfud dk;Zokgh dh tkap vk[;k]laxr vfHkys[k rFkk vkjksih }kjk izLrqr vHk;kosnu dk laxr vfHkys[kksa ds lkFk lko/kkuhiwoZd foLr`r ijh{k.k ,oa lE;d~ fopkj ds mijkar ;g ik;k x;k fd muds }kjk vius drZO;ksa dk leqfpr fuoZgu u fd;s tkus ds dkj.k fuxe ds fgr esa viuh drZO;ijk;.krk o lR;fu"Bk dks v{{kq.k cuk;s j[kus esa vlQy jgsA vr% muds fo:) yxk;s x;s vkjksi iw.kZ:is.k fl) gSA** Rule 12 of the rules is a mandatory provision which provides the manner in which the appellate authority shall pass an order, which is reproduced below:
"12 . Consideration of Appeal- The Appellate Authority shall pass such order as mentioned in clauses (a) to (d) of Rule 13 of these rules, in the appeal as he think proper after considering-
(a) Whether the facts on which the order was based have been established;
(b) whether the facts established afford ground for taking action; and
(c) whether the penalty is excessive, adequate or inadequate."
From perusal of the impugned appellate order it is clear that the appellate authority has neither considered the submissions of the petitioner nor appreciated the evidences nor recorded any finding supported by reasons that the facts on which the order of punishment was based, have been established and the facts so established afforded sufficient ground for taking action and the penalty is not excessive, but adequate.
Thus, it is evident that the appellate authority has failed to record the reasons and passed the impugned order in breach of the mandate of Rule 12 of the aforesaid rules. The reasons are heart-beat of any conclusion and without it the same is void. The valuable right of the petitioner-appellant cannot be jeopardised by the appellate authority. The minimum expectation from the appellate authority was to consider the case of the petitioner and to record the findings based on evidences before it.
In view of the foregoing discussions, I am of the considered opinion that the impugned order dated 20.2.2008 passed by the superintending engineer/appellate authority rejecting the appeal of the petitioner cannot be sustained.
In result, the writ petition succeeds and is allowed. The appeal of the petitioner filed before the appellate authority is restored. The appellate authority is directed to hear and decide the appeal afresh and pass a reasoned order in accordance with law after affording opportunity of hearing to the substituted heir of the petitioner, within three months from the date a certified copy of this order is filed by the substituted petitioner before him. However, there shall be no order as to costs.
Order Date :- 10.2.2014 Ak/